By Steven R. Rothman

September 7, 2021

New Jersey Globe– Thursday, September 7, 2021- https://newjerseyglobe.com/judiciary/opinion-a-dangerous-odd-and-unconstitutional-texas-law/
The Jewish Standard– Friday, September 17, 2021- https://jewishstandard.timesofisrael.com/supplement/jewishstandardprint/
The Times of Israel– Friday, September 18, 2021- https://blogs.timesofisrael.com/a-dangerous-odd-and-unconstitutional-texas-law/

“It is legal because I wish it.” Louis XIV.

The new Texas anti-abortion law is unconstitutional as its purpose and effect is to hinder, if not to entirely prevent, the free exercise of a Texas woman’s right to an abortion under Roe vs. Wade.  It is also unconstitutionally vague, arbitrary, overbroad, unreasonable and dangerous.

In 1973, the U.S. Supreme Court ruled in Roe v. Wade that the U.S. Constitution’s implied right to privacy under its 14th Amendment made it legal for a woman to have an abortion.

Abortions in the first three months of pregnancy were legal, they held, but abortions occurring after that time could be more regulated or restricted, with exceptions if the health of the mother was in jeopardy. Later Supreme Court cases said that a woman’s right to end a pregnancy could be further constrained if the fetus was determined to be capable of survival outside the womb and limited late-term abortions.

Enter the Texas Heartbeat Act, also known as SB 8, that the Texas legislature passed, and Governor Gregg Abbott signed in May 2021.

Interestingly, and with tacit acknowledgement of previous U.S. Supreme Court rulings upholding a right of a woman to have an abortion, the Texas Heartbeat Act allows a suit against anyone, for as long as four years after the prohibited action, for aiding and abetting an abortion, including doctors, clergy, psychotherapists, health insurance companies, cab drivers, Uber & Lyft drivers, etc., but not against the woman having an abortion.

Significantly, and perhaps sensing that this law will be extremely difficult to enforce, the Texas legislature created several affirmative defenses for anyone charged under it. 

In particular, the defendant will be excused from the application of the law if they introduce evidence that an award of relief against the defendant will “prevent a woman or a group of women from obtaining an abortion” or if such an award “will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion.” 

A low bar, indeed—though the law’s spiteful intentions are clear as a prevailing defendant cannot receive attorney’s fees and costs, but a prevailing plaintiff can.

The law also takes pains to state that these affirmative defenses will not be available to a defendant if “the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973).” 

Additionally disturbing, the law allows suits against anyone who “intends” to perform a non- “medical emergency” abortion after 6 weeks of fetal heartbeat or “intends” to aid and abet the performance of such an abortion. Surely, the punishment of thought and intention, where there is no action, is dangerous and cannot be constitutionally upheld.

The Texas law’s signature provision alone, though, should cause most Republican and Democratic judges and justices to stop the enforcement of this vague, arbitrary, overbroad, unreasonable, dangerous and unconstitutional law: the deputizing of anyone on planet Earth to sue someone who performs or aids and abets a legally permitted act in Texas (an abortion under Roe).

Imagine, as the Wall Street Journal Editorial Board does, if a state legislature decided to make any other lawful activity, like an otherwise eligible person purchasing a gun, subject to civil suits by anyone on Earth?

What if the law said there was strict liability for engaging in such conduct and that there would be a mandatory minimum award of $10,000 to anyone who aided and abetted the purchase of the gun?

I’m sure that Blue states are already considering taking up such an unconstitutional anti-gun or other such law, as a way to force the U.S. Supreme to court take up the unconstitutional Texas legislation. Of course, if a state were to enact such a law as the Wall Street Journal describes, the majority of the U.S. Supreme Court would reject that law instantly.

But, getting back to the recently passed Texas anti-abortion law, there are also huge Health Insurance Portability and Accountability Act (HIPPA) and other privacy roadblocks that will delay or outright deny the enforcement of this law—as the courts might not look kindly upon fishing expeditions into Americans’ medical records. This will make it more difficult if not impossible for the plaintiffs and their attorneys to get the evidence they will need to prove that someone performed or aided and abetted an abortion after 6 weeks of pregnancy.

The most recent Gallup poll shows that 58% of Americans oppose, and only 37% of people support this Texas “fetal heartbeat” law, with 56% who support and 41% who oppose the continued legitimacy of Roe vs. Wade.

Of course, the presently constituted U.S. Supreme Court could simply overturn Roe entirely in the weeks ahead.

As in Texas, elections have consequences.

Steven R. Rothman of Englewood is the former eight-term U.S. Congressman from New Jersey (1997 to 2013). He is a former judge, mayor and practicing attorney. He has been licensed to practice law in New Jersey for the past 43 years.